CYIL vol. 9 (2018)

Czech Yearbook of Public & Private International Law

Czech Yearbook of Public & Private International Law Česká ročenka mezinárodního práva veřejného a soukromého

Vol. 9

www.cyil.eu

Česká společnost pro mezinárodní právo Czech Society of International Law

Praha 2018

Editor-in-Chief: Professor PAVEL ŠTURMA This Yearbook is included in the Czech index of scholarly peer-reviewed journals (RVVI) and in the SCOPUS international database. KATALOGIZACE V KNIZE – NÁRODNÍ KNIHOVNA ČR Czech yearbook of public & private international law = Česká ročenka mezinárodního práva veřejného a soukromého. Vol. 9. – Praha : Česká společnost pro mezinárodní právo, 2018. – 460 stran Vydáno v nakladatelství Eva Rozkotová ISBN 978-80-87488-32-4 (Rozkotová Eva. Beroun)

341.1/.8 * 341.9 * (437.3) * (048.8:082) * (058) – mezinárodní právo veřejné – mezinárodní právo veřejné – Česko – mezinárodní právo soukromé – mezinárodní právo soukromé – Česko – kolektivní monografie – ročenky

341 – Mezinárodní právo [16]

Tato Ročenka je vydávána s ϐinanční podporou Rady vědeckých společností při Akademii věd ČR. This Yearbook is published with a ϐinancial support of the Council of Scientiϐic Societies of the Academy of Sciences of the Czech Republic. Vydavatel děkuje za významnou materiální podporu projektu Ročenky mezinárodního práva veřejného a soukromého advokátní kanceláři Weil, Gotshal & Manges LLP. © Česká společnost pro mezinárodní právo, 2018 © Czech Society of International Law, 2018 Vydala Česká společnost pro mezinárodní právo v nakladatelství Eva Rozkotová, v rámci mezinárodního publikačního projektu Passau-Berlin-Praha ISSN 1805-0565 ISBN 978-80-87488-32-4

BOARDS AND EDITORS

EDITORIAL BOARD Associate Professor VLADIMÍR BALAŠ Charles University in Prague, Faculty of Law, president of the Czech branch of ILA Dr. MILAN BERÁNEK Ministry of Foreign Affairs of the CR Associate Professor VERONIKA BÍLKOVÁ Charles University in Prague, Faculty of Law, Institut of International Relations, Prague Professor DALIBOR JÍLEK Paneuropean University Bratislava, Faculty of Law, Palacký University in Olomouc Professor MONIKA PAUKNEROVÁ Charles University in Prague, Faculty of Law, Institute of Law of the Academy of Sciences of the CR Associate Professor NADĚŽDA ŠIŠKOVÁ Palacký University in Olomouc, Faculty of Law Professor PAVEL ŠTURMA Charles University in Prague, Faculty of Law, Institute of Law of the Academy of Sciences of the CR, member of the International Law Commission Dr. ZUZANA TRÁVNÍČKOVÁ University of Economics Prague

ADVISORY BOARD Professor LAURENCE BOISSON DE CHAZOURNES Faculty of Law, University of Geneva Professor WLADYSLAW CZAPLINSKI Institute of Legal Sciences, Polish Academy of Sciences, Warsaw Professor ČESTMÍR ČEPELKA Charles University in Prague, Faculty of Law (emeritus) Professor MALGOSIA FITZMAURICE Queen Mary College, University of London, School of Law Professor RAINER HOFMANN Goethe University, Frankfurt/Main Professor JIŘÍ MALENOVSKÝ Judge, Court of Justice of the European Union, Luxembourg Professor PAUL TAVERNIER University Paris-Sud (XI), Paris (emeritus) Dr. PETER TOMKA Judge and former President, International Court of Justice, The Hague

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EDITOR-IN-CHIEF Professor PAVEL ŠTURMA Charles University in Prague, Faculty of Law President of the Czech Society of International Law, member of the ILC

EXECUTIVE EDITOR PETER MIŠÚR Association KAIROS, Prague

REVIEWERS The Editors and authors are grateful to the following reviewers of articles of this volume: Vladimír Balaš, Tomáš Doležal, Monika Forejtová, Mahulena Hofmannová, Jan Ondřej, Monika Pauknerová, Pavel Šturma, Zuzana Trávníčková.

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CONTENTS

PREFACE Pavel Šturma

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ABBREVIATIONS

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I. CZECHOSLOVAK STATE IN THE FOCUS OF ANNIVERSARY The Establishment of the Independent Czechoslovak State and its Frontiers in the Light of International Law and Politics of 1918–1920 Jan Kuklík

1

3

Protection of Mininorities Ján Klučka

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Czechoslovakia: Certificates and Passports of Refugees (1918–1930) Dalibor Jílek

38

Citizenship of the Czechoslovak first republic and citizenship of the Czech Republic and its international legal aspects (considering the double citizenship) Jan Ondřej – Magda Uxová Experiments with International Administration in the Paris Peace Treaties: A Study in International Administrative Law Jakub Handrlica II. STUDIES IN INTERNATIONAL LAW AND ORGANIZATIONS International Law on the Use of Force: Need for Methodological Debate Martin Faix – Ondřej Svaček State Succession to International Responsibility: A Critical Analysis of the Modern Succession Theory Based on the General Principles of Law Ceren Zeynep Pirim Protocol modernising the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data – towards a single regulatory framework in Europe and beyond? Emil Ruffer The principle of solidarity between voluntary commitment and legal constraint. The judgment of the Court of Justice (GC) in the case Slovak Republic and Hungary v Council of the European Union in Joined Cases C-643/15 and C-647/15 Andrea Circolo – Ondrej Hamuľák – Peter Lysina Addressees of Antitrust and State Aid Legislation in European, International and National Law Michal Petr IV. HUMAN RIGHTS AND INTERNATIONAL HUMANITARIAN LAW Due diligence under the Law of the Sea Vojtěch Pospíšil III. INTERNATIONAL LAW AND EUROPEAN LAW

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81

93

95

111

130

141

143

155

174 185

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Abortion and Euthanasia in the draft Human Rights Committee’s General Comment No. 36 on the Right to Life Pavel Caban 187 The Principle of the Presumption of Innocence in the European and International Context Jiří Mulák 199 The military use of unmanned aerial vehicles by the military and its conformity with international humanitarian law Birutė Pranevičienė – Violeta Vasiliauskienė 214

Right to Citizenship between International Law and Politics, with an Emphasize to its Implementation in the State in Transition: A Montenegro Perspective Ivana Jelic The Czech Republic and Solidarity with Refugees: There were Times when Solidarity Mattered Věra Honusková

229

241

V. HEALTH LAW, ETHICS, AND HUMAN RIGHTS

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The Convention on Biomedicine and Czech health law: the cornerstone of a great reform Petr Šustek 257 Convention on Biomedicine and Liability Resulting from Deficiency in Informed Consent Tomáš Holčapek 270 Mitochondrial replacement therapy in the light of the Convention on Biomedicine: the outline of a dilemma Martin Šolc 280 The Czechoslovakian Case of 1949 in the Gatt: Was there Some Luck in its Misfortune? Viktoriia Lapa 60 Years of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards: What is the Way Forward? Monika Feigerlová Legal Concerns on International Investment Between the Czech Republic and China: Chances and Challenges Anran Zhang 299 314 324 VI. VIEWS ON INVESTMENT AND TRADE LAW 297

Poverty Eradication – Controversies Between UN and WTO Nino Parsadanishvili

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What Can We Expect from Post-Brexit United Kingdom’s Investment Policy? Ondřej Svoboda – Jan Kunstýř

352

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VII. CZECH PRACTICE OF INTERNATIONAL LAW 363 Customary international Law, interpretation of treaties and other topics at the 70th session of the International Law Commission Pavel Šturma 365 Law of the sea: Is it relevant for the Czech Republic? Petr Válek 378 The Czech Republic before the European Court of Human Rights in 2017 Vít Alexander Schorm 393 List of Ratified International Treaties which Entered into Force for the Czech Republic from 1st January 2017 tiil 31st December 2017 Milan Beránek 404

VIII. SHORTER ARTICLES AND NOTES

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Mootcourts on Issues of Public International Law in Year 2017/2018 Milan Lipovský Migration and Refugee Law at the Law Faculty of Charles University Věra Honusková

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IX. BOOK REVIEWS

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Sir Ivor Roberts (ed), Satow’s Diplomatic Practice Ralph Janik

421

Bhuta, Nehal (eds.), Autonomous Weapons Systems: Law, Ethics, Policy Ludmila Halajová Andreas Kulick (ed.), Reassertion of Control over the Investment Treaty Regime Interpretation Ondřej Svoboda

422

426

X. SURVEY OF CZECH INTERNATIONAL LAW BIBLIOGRAPHY

429

431

Zuzana Trávníčková

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PREFACE

Dear Readers,

It is with great pleasure to introduce to you already the ninth volume of the Czech Yearbook of Public & Private International Law (CYIL), published, as usual, in autumn. During this time of year there are many international conferences, such as those organized by the European Society of International Law, and the ASIL Mid-year conference, along with the traditional joint conference of the Czech and Slovak Societies of International Law, and the debate of the Sixth (Legal) Committee of the UN General Assembly. This is most likely the appropriate time for readers of this Yearbook who are interested in the developments in international law and its codification. The Czech Yearbook is a scholarly publication of the Czech Society of International Law, acting in cooperation with the Czech Branch of the International Law Association. Since 2014, the Czech Yearbook has been published by the new international publishers, RW&W, Science & New Media, and Passau-Berlin-Praha, which also ensures, in cooperation with Süd Ost Service, its distribution in Germany and Western Europe. As you know, the CSIL publishes the Yearbook both in printed and electronic versions ( www.cyil.eu ). Since 2015, the Czech Yearbook has been included in the Czech index of scholarly peer-reviewed journals (RVVI) and in the SCOPUS international database. Last year, Volume 8 broke CYIL’s record, when it amounted to 660 pages. The growth of the Czech Yearbook now ranks it among the larger publications of this kind in an international comparison. However, the size of the Yearbook also warrants some technical improvements, such as a larger format for pages and better paper and cover quality used in the print version. This year, we have tried to maintain the standard size of 460 pages, while keeping the improvements from the previous issue. In spite of the higher publishing costs, we are proud to announce that this publication is still available to the members of the Czech Society of International Law free of charge (the price is included in the membership fee) and is on sale for a very reasonable price. However, the rich and interesting content remains, in our opinion, the main goal and commitment of the CYIL. Volume 9 (2018) presents a variety of studies and articles covering many issues of contemporary International and European law. The Yearbook first presents a Symposium reflecting upon the 100th anniversary of the end of WWI and the creation of Czechoslovakia in 1918, which includes five studies by Czech and Slovak scholars. This Symposium is not limited to the issues of legal history or to problems related only to the Czechoslovak state. While two articles discuss the international legal aspects of the establishment of Czechoslovakia, its frontiers, and its citizenship, others focus on the protection of minorities, the admission and treatment of refugees, and the international administration during the period between the two wars. Readers will also find many other traditional sections as well. The volume includes, inter alia, studies and articles on international law and the use of force, State succession, or due diligence in the law of the sea. Like in the previous year, the CYIL also presents a section on International law and EU law with three articles on a wide range of issues, including the article on the principle

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of solidarity between voluntary commitment and legal constraint, commenting on the judgment of the CJEU in the Joined Cases of the Slovak Republic and Hungary v. Council of the European Union. An important number of articles deal with international human rights law as well as international humanitarian law. This volume again includes a special section on Health, ethics, and human rights. According to its tradition, the CYIL in Volume 9 also heavily covers many aspects of international trade and investment law, including GATT/WTO law, recognition and enforcement of foreign arbitral awards, or consequences of Brexit to the UK investment policy. The Yearbook also covers the Czech practice of international law, in particular the Czech cases before the European Court of Human Rights. Moreover, the publication presents, as usual, topical information on the work of the UN International Law Commission in 2017, the list of treaties ratified by the Czech Republic, book reviews, and a survey of Czech international law bibliography. As usual, the authors of this publication come from both Czech and foreign institutions, and also from academia and legal practice. More than in previous years, this volume includes contributions of foreign professors and researchers, coming from or teaching in Austria, China, Georgia, Italy, Lithuania, Montenegro, Slovakia, Turkey, and Ukraine. As to the Czech institutions involved, these include Charles University in Prague, Masaryk University in Brno, Palacký University in Olomouc, Institute of Law of the Czech Academy of Sciences, the University of Economics in Prague, the Ministry of Foreign Affairs, the Ministry of Industry and Trade, and the Ministry of Justice, as well as some private law firms. This publication exists thanks to the continuing financial subsidy from the Council of Scientific Societies of the Czech Republic to the Czech Society of International Law. We are also grateful for the generous financial support from the Prague branch of the law firm Weil, Gotshal & Manges. We wish that this volume of the Czech Yearbook finds many readers as well and we are looking forward to new authors and new contributions in the next volume when we celebrate our 10th year. We are also grateful for any comments and suggestions on how to improve the quality of this journal.

Prof. Pavel Šturma Editor-in-Chief

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ABBREVIATIONS

ACFC – Advisory Committee on the Framework Convention ASEAN – Association of Southeast Asian Nations BITs – bilateral investment treaties Brexit – United Kingdom’s withdrawal from the European Union CAHDATA – ad hoc Committee on data protection CAHDI – Committee of Legal Advisers on Public International Law CCA – Czech Competition Authority CEDAW– Convention on the Elimination of All Forms of Discriminations Against Women CEE – Central Eastern European Country CETA – EU-Canada Comprehensive Economic and Trade Agreement CETS – Protocol amending the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data

CIA – Central Intelligence Agency CIL – customary international law CJEU – Court of Justice of the EU COC – Code of Conduct for the South China Sea COMAR – Working Party Council of the EU on the Law of the Sea CR – Czech Republic

CSFR – Czech and Slovak Federal Republic CSNC – Czechoslovak National Council DARIO – Draft Articles on the responsibility of international organizations DCFTA – Deep and Comprehensive Free Trade Areas DLAPIL – Department of Legal Advice and Public International Law DOALOS – Division for Ocean Affairs and the Law of the Sea EAA – European Economic Area EC – European Commission ECHR – European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) ECJ – European Court of Justice ECLJ – European Centre for Law and Justice ECT – Energy Charter Treaty ECtHR – European Court of Human Rights EEZ – exclusive economic zone EFTA – European Free Trade Association ETS – Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data EU – European Union

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FCNM – Framework Convention for the Protection of National Minorities FDI – foreign direct investment FET – fair and equitable treatment

FTA – Free Trade Areas FTZ – Free Trade Zone

GATS – General Agreement on Trade in Services GATT – General Agreement on Tariffs and Trade GDP – gross domestic product GDPR – General Data Protection Regulation GDR – German Democratic Republic HRC – Human Rights Council ICCPR – International Covenant on Civil and Political Rights ICJ – International Court of Justice ICS – investment court system ICSID – International Centre for Settlement of Investment Disputes IHL – international humanitarian law

ILC – UN International Law Commission ILO – International Labour Organization ISDS – investor-state dispute settlement ITO – International Trade Organization IUU – illegal, unreported and unregulated (fishing activities) LDCs – Least Developed Countries MAC Convention – Convention on the Determination of the Minimal Conditions for Access and Exploitation of Marine Resources MFA – Minister of Foreign Affairs MPAs – marine protected areas MRT – mitochondrial replacement therapy mtDNA – mitochondrial DNA

NAFTA – North American Free Trade Agreement NATO – North Atlantic Treaty Organization

NGOs – non-governmental organizations OBOR – One Belt One Road Initiative OECD – Organisation for Economic Co-operation and Development PACE – Parliamentary Assembly of the Council of Europe SCA – Slovak Competition Authority SCS – South China Sea SRFC – Sub-Regional Fisheries Commission TEU – Treaty on the European Union TFEU – Treaty on the Functioning of the European Union

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TTIP – Transatlantic Trade and Investment Partnership UASes – unmanned aircraft systems UAVs – unmanned aerial vehicles

UK – United Kingdom UN – United Nations UNCITRAL – United Nations Commission on International Trade Law UNCLOS – United Nations Convention on the Law of the Sea UNCTAD – United Nations Conference on Trade and Development UNGA – General Assembly of the United Nations UNHCR – Office of the United Nations High Commissioner for Refugees USA – United States of America USSR – Union of Soviet Socialist Republics VCLT – Vienna Convention on the Law of Treaties WTO – World Trade Organization

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I. CZECHOSLOVAK STATE IN THE FOCUS OF ANNIVERSARY

CYIL 9 ȍ2018Ȏ

THE ESTABLISHMENT OF THE INDEPENDENT CZECHOSLOVAK STATE …

THE ESTABLISHMENT OF THE INDEPENDENT CZECHOSLOVAK STATE AND ITS FRONTIERS IN THE LIGHT OF INTERNATIONAL LAW AND POLITICS OF 1918–1920 Jan Kuklík

Abstract: The study deals with the problems of recognition connected with the establishment of Czechoslovakia in 1918–1920. Czechoslovakia as an independent state was established after the dissolution and demise of the existing state – Austria-Hungary. However, the representation of the newly conceived state (a state in statu nascendi) had come into existence and had been gradually and to a different extent recognized by Allied powers even before the collapse of Austria-Hungary. Czechoslovakia as a newly emerging state had been internationally recognized through its exile bodies and military troops even before it was declared by the local political representation on 28 October 1918. The establishment of Czechoslovakia was also closely linked to its recognition as a “belligerent nation” on the side of Allies. All that happened at the time of newly defined theory of the right of a people to self-determination, particularly after the USA joined the war and declared the Fourteen Points of President Wilson. The process of establishment of the Czechoslovak state was not complete from the point of view of international law on 28 October 1918; certain important classifying criteria of an independent state, such as definite borders, control over the state territory and the population were satisfied later by the peace treaties concluded at the Paris Peace Conference which started in January 1919. These treaties confirmed the existence of new states, including Czechoslovakia, and their borders and dealt with other important issues of international law connected with the establishment of a state as well as the consequences of disintegration of Austria-Hungary. Paris Peace Conference also finally brought to end hopes of Czech Germans for the secession however it introduced the newly established system of protection of minorities under the auspices of the League of Nations. In the period of 1914–1919 certain principles of traditional international law were confronted with the real life situations to which they needed to respond. The study therefore examines concrete practical diplomacy of individual Allied states as well, as confrontation of the so called constitutive theory of recognition (followed especially by Great Britain and USA) with the declaratory theory developed and kept by newly established states including Czechoslovakia. Resumé: Studie se zabývá problematikou spojenou s uznáním Československa v letech 1918–1920. Československo jako samostatný stát bylo vyhlášeno po rozpuštění a zániku Rakousko-Uherska. Nicméně, reprezentace nově vznikajícího státu (statu nascendi) byla ustavována postupně a byla respektována spojeneckými mocnostmi ještě před krachem Ra- kousko-Uherska. Československo jako nově se rozvíjející stát tak byl mezinárodně uznáván prostřednictvím svých exilních orgánů a vojenských jednotek ještě předtím, než jej místní politická reprezentace vyhlásila dne 28. října 1918. Založení Československa bylo také úzce spjato s jeho uznáním jako „bojujícího národa“ na straně spojenců. Uvedený proces probíhal v rámci nově definované teorie práva národů

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JAN KUKLÍK CYIL 9 ȍ2018Ȏ na sebeurčení, zvláště poté, co se USA připojily k válce a vyhlásily čtrnáct bodů prezidenta W. Wilsona. Proces založení československého státu nebyl z pohledu mezinárodního práva ukončen dne 28. října 1918; některá důležitá kritéria, vymezující nezávislý stát, jako je vymezení hranic, kontrola nad státním územím a obyvatelstvem, byly později splněny mírovými smlouva- mi uzavřenými na Pařížské mírové konferenci, která začala v lednu 1919. Tyto smlouvy potvrdily existenci nově vzniklých států, včetně Československa a jejich hranic a zabývaly se I dalšími důležitými otázkami mezinárodního práva spojenými se vznikem státu, jakož i důsledky rozpadu Rakousko-Uherska. Pařížská mírová konference konečně ukončila na- děje českých Němců na odchod z republiky, nicméně zavedla systém ochrany menšin pod záštitou Společnosti národů. V letech 1914–1919 byly některé principy tradičního mezinárodního práva konfrontovány s reálnými životními situacemi, na které musela nová republika reagovat. Studie pro- to zkoumá konkrétní praktickou diplomacii jednotlivých spojeneckých států, stejně jako konfrontaci tzv. konstitutivní teorie uznání (prosazovanou zejména Velkou Británií a USA) s deklarační teorií rozvíjenou a udržovanou nově založenými státy včetně Československa. Key words: dissolution of Austria-Hungary, establishment of independent Czechoslovakia 1918; recognition of a belligerent nation, the right of a people to self-determination, recognition of Czechoslovak provisional Government, Paris Peace Conference, Peace Treaties, frontiers, national minorities. About the Author: Professor JUDr. Jan Kuklík, DrSc. , was born on August 1, 1967 in Prague. The present dean of the Faculty of Law, Charles University, Prague. Graduated from the Faculty of Law, Charles University Prague in 1989 (JUDr.), awarded Doctorate in legal theory and history in 1995. In 1991–1992 a visiting graduate student at St. Edmund Hall, Oxford University. Professor of legal history (2005) and director of the Institute of legal history (2010). Specializes in the Czech and Czechoslovak legal history, Czechoslovak foreign policy and resistance movement in exile during WWI and WWII. Author or co- author of 15 monographs and more than 100 studies. International recognition of Czechoslovakia, including its form and final determination of its borders, is still an important political and legal question even now as we celebrate 100 years since its establishment. Czechoslovakia as an independent state was established after the dissolution and demise of the existing state – Austria-Hungary. However, the representation of the newly conceived state (a state in statu nascendi ) had come into existence and had been gradually recognised to a different extent by the Allied Powers even before the collapse of Austria- Hungary. Czechoslovakia (the name Czecho-Slovakia, which better reflected the connection of the Czech Lands and Slovakia, appeared in official documents in Great Britain, the U.S. and even Italy) as a newly emerging state had been internationally recognised through its exile bodies and military troops before it was declared by the local political representation on 28 October 1918. 1 Another important fact is that it occurred during the war and the

1 When we talk about the Czechoslovak State the important date is 30 October 1918 when the Slovak National Council accepted the idea of a common state in the so-called Martin Declaration. RYCHLÍK, J.: Češi a Slováci

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CYIL 9 ȍ2018Ȏ THE ESTABLISHMENT OF THE INDEPENDENT CZECHOSLOVAK STATE … establishment of Czechoslovakia was therefore closely linked to its recognition as a “belligerent nation” on the side of Allies. All that happened at the time of the newly defined theory of the right of a nation to self-determination, particularly after the U.S. joined the war and declared the Fourteen Points of President Wilson. The process of establishing the Czechoslovak state was not complete from the point of view of international law on 28 October 1918; certain important classifying criteria of an independent state, such as definite borders, control over the state territory, and the population 2 were later satisfied by the peace treaties concluded at the Paris Peace Conference (“Peace conference”) which started on 18 January 1919. These treaties confirmed the existence of new states, including Czechoslovakia and their borders, and dealt with other important issues of international law connected with the establishment of a state (and the disintegration of Austria-Hungary). During the period of World War I, certain principles of traditional international law were confronted with the real life situations to which they needed to respond. Concrete examples of practical diplomacy of individual Allied states (i.e the Entente Powers) is important for our topic. 3 Many Great Powers’ leaders realised that the situation of the “Great War” required a previously unprecedented approach. 4 For that reason we need to focus firstly on international political and legal negotiations. During the establishment of the independent Czechoslovak state, a combination of internal political development represented by the National Committee (and by the Slovak National Council in Slovakia) and the development of the Czechoslovak political elite in exile represented from 1915 by the Czechoslovak National Council with T. G. Masaryk at its head played a role. The Czechoslovak National Council was transformed into a provisional government (in exile) before the declaration of independence by Czechoslovakia on 28 October 1918. It has been stated that the basic condition for the establishment of the Czechoslovak state was the collapse of Austria-Hungary, namely because the Czech Lands and Slovakia were located in different parts, Austrian and Hungarian respectively, of this personal and real Union. However, before World War I, no influential representatives of Czech political elites supported the idea of an independent state as a realistic programme, let alone making endeavours to achieve it; of course, some exceptions existed (namely the representatives of the State-law Progressive Party). Attempts at a reform within Austria-Hungary strongly prevailed; the maximum requirement was the programme of federalisation or trialisation of the empire with a relatively elaborate programme, although differently interpreted, of the so- called historical Czech state law 5 as its basis. According to it, the medieval Czech State did not 2 An attempt at defining the criteria was made in Article I of the so-called Montevideo Convention (Montevideo Convention on the Rights and Duties of States) adopted by the governments represented in the Seventh International Conference of American States in 1933. Treaties and Other International Agreements of the United States of America 1776-1949. Compiled under the direction of Charles I. Bevans LL.B., Vol. 3 Multilateral 1931-1945, Washington, DC: Government Printing Office, 1969. 3 See also LAUTERPACHT, H.: Recognition of States in International Law, Yale Law Journal, vol 53/3, 1944, esp.p. 408 and following. 4 In case of France it was mentioned by TALMON, S.: Recognition of Governments in International Law: With Particular Reference to Governments in Exile, Oxford Clarendon Press 1998, p. 78. 5 KUKLÍK, J.: Czech Law in Historical Contexts , Praha: Karolinum 2015, esp. p. 74-76. ve 20. století , díl I., česko-slovenské vztahy 1914-1945 [ Czechs and Slovaks in the 20 th Century, Part I, Czecho- Slovak Relations 1914–1945], Bratislava: Academic Electronic Press, 1997, pp. 57-60.

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JAN KUKLÍK CYIL 9 ȍ2018Ȏ perish through its connection with Austria, it existed within the Austrian state and Austrian Emperors ruled in the Czech Lands on account of being Czech Kings. The principal role in the formulation of the idea of independence and the union of the Czech Lands and Slovakia was played by Professor T. G. Masaryk. The Czech politician and university professor decided to take political action in exile, where he supported the creation of an independent state and persuaded the Allied Powers of his conceptions. Professor R.W. Seton-Watson, who had been interested in the Czech and particularly in the Slovak development even beforeWorldWar I, prepared a summary of Masaryk’s political goals for the Foreign Office following discussions with Masaryk in the Netherlands in September 1914. 6 Masaryk’s ideas, including a possible new arrangement of Central and Eastern Europe, were made more specific in his lecture called The Problems of Small Nations in the European Crisis , which he gave at King’s College in London. 7 However, his first “anti-Austrian” speech is linked to his stay in Switzerland; he delivered it symbolically in Zurich on 4 and 6 July 1915 and then in the Reformation Hall in Geneva on the 500 th anniversary of Master Jan Hus’s martyrdom. Masaryk was invited by associations of compatriots, and in his speech he interconnected historical, political, and religious reasons for the parting of the Czech Lands from Austria. 8 The proclamation of 14 November 1915 conceived by Masaryk required the creation of an independent Czechoslovakia free from Austria-Hungary and mentioned the union of the Czech Lands with Slovakia; it was formally adopted by the Czech Committee Abroad which was later reconstituted as the Czechoslovak National Council (CSNC) with its seat in Paris. The proclamation was signed by the Agrarian Party deputy in the Imperial Council ( Reichsrat ) Josef Durych and representatives of the Czech and Slovak compatriot associations and organisations from France, USA, Great Britain, and Russia. 9 A more detailed program of “the reconstitution of Bohemia as an independent state” 10 was later outlined in a confidential memorandum called Independent Bohemia of May 1915, which was presented to the British Foreign Secretary E. Grey. “Slovak regions in Upper Hungary” were to be united with the Czech Lands. Masaryk described Slovaks as “Czechs, although they use their own dialect as a standard language. Slovaks make efforts for independence and accept the program of integration with Bohemia”. However, a precondition for the creation of such state was the collapse of Austria-Hungary which Masaryk called an artificial state unable to tackle the problems of nationalities and, what’s more, an ally of Wilhelm’s Germany. Masaryk proposed a personal union between Serbia and the Czechoslovak state where the Serbian King would become the Czech King (but, in Masaryk’s thoughts, a Danish, 6 RYCHLÍK, J., MARZIK, T. D., BIELIK, M.: R.W. Seton-Watson a jeho vzťah k Čechom a Slovákom , díl 1. [ R.W. Seton-Watson and his Relations to Czechs and Slovaks, Part 1]. Dokumenty, Praha: Ústav T. G. Masaryka – Matica slovenská, 1995, doc. No. 61. 7 The problem of small nations in the European crisis; inaugural lecture at the University of London, King’s College by Professor Thomas G. Masaryk, The Council for the Study of International Relations, Foreign Series, No. 2 [1916]. 8 KUBŮ, E., ŠOUŠA, J.: T. G. Masaryk a jeho c.k. protivníci: Československá zahraniční akce ženevského období v zápase s rakousko-uherskou diplomacií, zpravodajskými službami a propagandou (1915–1916) [ T. G. Masaryk and his Opponents: Czechoslovak Action Abroad in Geneva Period of Struggle with Austro-Hungarian Diplomacy, Intelligence Services and Propaganda (1915–1916) ]. Praha: Karolinum 2015, pp. 78-87 and the document in appendix No. 2. 9 Ibid, p. 90 and following. 10 R.W. SETON-WATSON, Masaryk in England , Cambridge: The University Press and Macmillan Comp. New York, 1943, p. 116 and following.

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CYIL 9 ȍ2018Ȏ THE ESTABLISHMENT OF THE INDEPENDENT CZECHOSLOVAK STATE … Belgian, or British Prince could have become the Czech King, too). Masaryk proclaimed the idea that the goal of the war must be “the revival of Europe” on the basis of the “modern principle of nations”. Thus, thanks to Masaryk’s ideas, the Czech question gradually became an international question. Other Czech and Slovak politicians, such as Edvard Beneš and M. R. Štefánik, co-operated with Masaryk. The young Czech politician Edvard Beneš proved particularly competent in diplomacy and in garnering support for Masaryk’s opinions at the international level from the Allied Powers. He also symbolised the connection with the Czech secret political organisation known as “ Maffie ”. Štefánik was a competent negotiator and organizer, mainly in military matters. In France and Great Britain, however, the Czech (Czechoslovak) issue was always looked at from a wider perspective of similar efforts of other Slav nations and in the context of Austria-Hungary as a whole. 11 The key moment for a change in the approach of the Allied Powers to the idea of an independent Czechoslovak state arrived in the last year of the war in 1918. It was more and more evident that Austria-Hungary would not be able to survive or would, at the very least, need a significant overhaul of its government. The Bolshevik Revolution in Russia and its recuperations, the U.S. joining World War I, and the application of Wilson’s Fourteen Points and his appeal to the Allied Powers to formulate their war goals influenced this change in approach. The opportunity for Czech (Czechoslovak) independence appeared, although the possibility of wider rights for individual countries within a federated Austria was still being considered. 12 It was important for the establishment of an independent state that the diplomatic efforts of the Czech representation abroad (in exile) should be supported by evidence of the Czech and Slovak nations’ will to live in an independent state. Arguments in favour of the union of the Czech Lands and Slovakia were also vital. Clearly, arguments emphasising the claims of the oppressed nations in Austria-Hungary for self-determination prevailed, but, as we will see, a combination of this approach and the original ideas of the Czech state law were also conceivable. A larger part of the “domestic” Czech political scene chose either an expectant or even a loyalist approach to Austria-Hungary during the second half of 1917. The Manifesto of Czech Writers of May 1917 played an important role in this respect; it appealed to Czech deputies in the Reichsrat to support the “Czech political programme” which reflected the development of world events. But “the Czechoslovak nation” was mentioned, too, anticipating the union with Slovakia. The union of Czechs and Slovaks within the reformed Austria-Hungary was also foreseen in the proclamation of the so-called Czech Union (the representation of Czech deputies in Austrian Parliament) which František Staněk, the deputy of the Agrarian Party, read at the opening of the reinstated Reichsrat in Vienna on 30 May 1917. The so-called General Assembly of Czech Deputies of the House of Deputies of the Reichsrat and of the Czech, Moravian, and Silesian Diets (i.e. officially elected Czech political representation) and the adoption of the declaration known as the Three Kings Declaration 13 became the 11 See HANAK, H.: The Government, the Foreign Office and Austria-Hungary 1914–1918. The Slavonic and East European Review , 1969, Vol. XLVII, No. 108, p. 161 and following. 12 PERMAN, D.: The Shaping of the Czechoslovak State: Diplomatic History of the Boundaries of Czechoslovakia, 1914–1920 . Brill 1962, in particular pp. 28-30. 13 KLIMEK, A. et al. (eds.): Vznik Československa 1918 [ Creation of Czechoslovakia 1918 ]. Dokumenty českoslo- venské zahraniční Politiky, Praha: Ústav mezinárodních vztahů 1994, doc. No. 1 and 2.

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JAN KUKLÍK CYIL 9 ȍ2018Ȏ key moments. We can find there the requirement that an independent Czech state should be created within its historical borders (i.e. on the basis of the traditional programme of historical state law) combined with the principle of a nation’s right to self-determination, the union with the “Slovak national branch”, but also the requirements that the principles of civil rights, democracy, and social justice should be adhered to. The meaning of the Czechoslovak legions for the manifestation of the will to be independent has been repeatedly emphasised in specialist literature, but the legal context should be considered too. Legions were the reason for the recognition of “the Czechoslovaks” as a “belligerent nation” on the side of the Allied Powers against still existing Austria- Hungary. Such a twist was first seen in France which combined military questions with the recognition of political representation abroad – the Czechoslovak National Council. 14 A significant turning point came in the spring of 1918 when, as a consequence of the declared close German-Austrian co-operation, the Allied Powers conceded that the aim of their policy could be the destruction of Austria-Hungary. Deliberations about a new arrangement of states not only in Central Europe but particularly in the Balkans was born. As a result, Beneš’s and Štefánik’s negotiations for an agreement about the status of the Czecho- Slovak army in Italy, or troops comprised of citizens of the “Czecho-Slovak lands”, was signed by the government of Italy and the CSNC. 15 This agreement mentioned again that the troops were under the political leadership of the Czechoslovak National Council. In May 1918 the General Secretary of the CSNC, Edvard Beneš, came to London and thanks to W. Steed was able meet with Foreign Secretary J. Balfour; Beneš submitted to him a memorandum on “the popular movement against Austria-Hungary in the Czecho-Slovak lands” where the political development “at home” and in the Allied countries was summarised. 16 Beneš stressed the establishment of legions and their actions on the front on the side of Allies as the reason for the change in British policy. In the following letter addressed to the Foreign Secretary, Beneš called on the British government to internationally recognize the rights of the Czechoslovak nation, which had created its army and was led by the National Council, as did France and Italy where the Czech legions were also active. The aim of the actions abroad was Czechoslovak independence achieved in agreement with Western powers and with their guarantees. 17 Beneš also negotiated this question with the Minister of Blockade Lord Robert Cecil and the War Secretary A. Millner to whom he addressed another memorandum on the recognition of the Czechoslovak army abroad on 14 May 1918. 18 The Foreign Office assessed the documents in the light of developments both on the front and in the international sphere, and the Foreign Secretary A. J. Balfour confirmed to Beneš on 3 July 1918 that Great Britain was prepared to recognise the CSNC to the similar extent as France and Italy did, i.e. as the highest body of Czechoslovaks in the Allied states, and Czechoslovak legions as an army fighting for the aims of Allies. 19 In July 1917, the so-called National Committee with Karel Kramář at its head began to represent Czech national policy. On 22 July 1917 Beneš told the Secretary of the French

14 It occurred by the decree of the President of the French Republic of 16 December 1917 in the Journal Officiel. 15 KLIMEK, A. et al. (eds.): Vznik Československa 1918 [ Creation of Czechoslovakia 1918 ], doc No. 24.

16 Ibid, doc. No. 27. 17 Ibid, doc. No. 28. 18 Ibid, doc. No. 29. 19 Ibid, doc. No. 44.

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CYIL 9 ȍ2018Ȏ THE ESTABLISHMENT OF THE INDEPENDENT CZECHOSLOVAK STATE … Ministry of Foreign Affairs that the development in the local politics was the reason for the increased support for the idea of Czechoslovak independence and several days later, on 26 July 1917, he addressed another memorandum to the British Foreign Secretary Balfour, demanding the recognition of “Czecho-Slovak national sovereignty”. 20 He elaborated arguments for the recognition of the CSNC as the body which represented the fight for independence and provided political leadership of troops in Italy, France, and Russia. Mainly the legions in Russia amounting to 70 thousand men represented an important military factor for the Allied Powers, especially for France and Great Britain, although the CSNC had earlier tried to transfer them to the western front. Thus, the CSNC was to be transformed into a provisional government. Beneš emphasised particularly to Brits that these steps enjoyed the support from the French military and political representatives. On 2 August 1918, E. Beneš met with Robert Cecil, who had been appointed Assistant Secretary for Foreign Affairs, to negotiate the text of the British proclamation on the Czecho- Slovak issue. Great Britain was prepared to issue the proclamation stating that Czechoslovaks were an allied nation and Czechoslovak legions were a belligerent allied army waging war against Germany and Austria-Hungary. The CSNC was to be recognised as the supreme authority exercising control over the army. Beneš insisted in his proposal that the term sovereignty should be used and requested that Great Britain should recognise the CSNS as the provisional government. He also proposed a special agreement with Great Britain which would deal with issues of capital for maintaining the army or the possibility to issue Czechoslovak passports. 21 Indeed, on 9 August 1918, Great Britain issued the declaration proposed by Beneš and signed by A. J. Balfour on behalf of Great Britain, albeit in a compromised form (as proposed by The Times editor W. Steed 22 ), and thus recognised the Czechoslovak National Council as the supreme body championing the Czechoslovak national interests, commanding Czechoslovak military troops, and acting as “trustees” for the future provisional Czechoslovak government. 23 The above mentioned envisioned agreement between Great Britain and the Czechoslovak National Council (modelled on a similar agreement negotiated with France 24 ) was finalised at the end of August and signed on 3 September 1918. It elaborated on the so-called Balfour declaration and enabled the Czechoslovak National Council to designate persons who would be regarded as allies rather than enemy aliens. 25 In August 1918, Beneš negotiated, via the Japanese ambassador to Great Britain, a possible recognition of the Czechoslovak National Council by Japan, inasmuch as it was recognised by France and Italy; Japan did so on 9 September 1918. 26 T. G. Masaryk informed the U.S. Department of State of the developments around Czechoslovak issues and in particular the Czechoslovak Legions in Russia, seeking to obtain support for the foundation of an independent Czechoslovak state. It was primarily the Czech and Slovak community in America (and 20 Ibid, doc. No. 76. 21 Ibid, doc. No. 80-83. 22 STEED, W.: Edward Beneš, In.: Edward Beneš, Essays and Reflections presented on the occasion of his Sixtieth Birthday, London: Allen and Unwin, 1944, pp. 58-59. 23 KLIMEK, A. et al (eds.): Vznik Československa 1918 [ Creation of Czechoslovakia 1918 ], doc. No. 88. 24 The agreement was concluded only on 28 September 1918, ibid., doc. No. 130. 25 Ibid, doc. No. 106. 26 BENEŠ, E.: Světová válka a naše revoluce [ WorldWar and Our Revolution ], Vol. III., Čin: Praha 1935, pp. 292-294.

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JAN KUKLÍK CYIL 9 ȍ2018Ȏ their associations) that supported, in the so-called Pittsburgh Agreement, the creation of an independent state, but with autonomy for Slovakia. 27 On 31 August 1918, Masaryk handed over to Robert Lansing, the U.S. Secretary of State, a memorandum requesting the recognition of the Czechoslovak National Council as the representation of the newly created state, raising the arguments of “historical rights of Bohemia” (expressly referring to the Czech state law) to independence and giving the reasons for including Slovakia. Primarily, he highlighted the political and military reasons stemming from the international development of this stage of the war which were, in Masaryk’s opinion, in line with the ideas of the U.S. President W. Wilson. 28 On 2 September 1918, the U.S. acknowledged that the Czechoslovak nation indeed fought against Germany and Austria-Hungary, inter alia by using an organised army in the war. In addition, the U.S. recognised the Czechoslovak National Council as the de facto government of this belligerent nation, which controls military and political operations of the “Czechoslovaks”. 29 The supportive attitude of the Allied (Entente) Powers enabled the Czechoslovak National Council to consider, in mid-September 1918, a possible transformation into a provisional government. Moreover, from 29 September onwards, the Czechoslovak National Committee, together with the Czech Union of Deputies to the Imperial Council, refused to participate in the negotiations on the constitutional transformation of the Austro-Hungarian Empire, and the preservation of Austria-Hungary was no longer supported by the German politicians in the Austrian lands who instead came up with the idea of German Austria. After Italy, France, and the U.S. (where negotiations were underway about a possible loan) agreed to the de facto recognition of the Czechoslovak National Council as the Czechoslovak government, on 14 October 1918 the transformation into the provisional Czechoslovak government abroad was effected, and this fact was communicated by Beneš to the Allied (Entente) Powers. 30 Further progress towards the recognition of the independence of Czechoslovakia by the great powers was made thanks to the Czechoslovak legions in Russia, as evidenced by the exchange of telegrams between the British prime minister David Lloyd George and Masaryk. In his telegram from 19 September 1918, Masaryk openly maintained that it was necessary to create the Czechoslovak state, because no victory would be achieved by the Allies if Austria- Hungary was preserved, whatever its form. 31 The first country to recognise the de facto provisional Czechoslovak government of the newly created Czechoslovak state was France on 15 October 1918, followed by Italy on 24 October 1918. 32 At the same time, diplomatic relations with France and Italy were established. The British attitude was influenced by the supportive attitude to the recognition shown by France and Italy, as well as the favourable development of the Czechoslovak-American relations. On 26 October 1918, Great Britain accepted Š. Osuský as the Czechoslovak diplomatic representative, following a diplomatic note by the British ambassador to France, 27 KUKLÍK, J.: Czech Law in Historical Contexts, p. 85. 28 KLIMEK, A. et al. (eds): Vznik Československa 1918 [ Creation of Czechoslovakia 1918 ], doc. No. 103. 29 Ibid, doc. Nos. 104 and 105. 30 For discussion on the relevance, from the international law perspective, of this step to the de facto recognition of the Czechoslovak exiled government, see TALMON, S.: Recognition of Governments in International Law, c.d. pp. 78-79. 31 KLIMEK, A.: Vznik Československa [ Creation of Czechoslovakia 1918 ], doc. No. 119. 32 Ibid, doc. Nos. 147 and 165.

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CYIL 9 ȍ2018Ȏ THE ESTABLISHMENT OF THE INDEPENDENT CZECHOSLOVAK STATE … E. G.V. Derby. This step can be interpreted as the de facto recognition of the Czechoslovak provisional government, although not to the same extent as done by France. 33 Yet the international aspects surrounding the creation of Czechoslovakia became more visible only in 1919–1920. As mentioned earlier, the Allied (Entente) Powers postponed the final international recognition of the newly established states until the Peace conference in Paris where other related issues were to be addressed, such as the borders, finances, military issues, and minorities. Great Britain, in particular, regarded the current status of the Czechoslovak state as “provisional”, which stems from the fact that only after the Peace conference was Great Britain willing to regard the mutual diplomatic relations as “final” and would send an envoy to Prague rather than a provisional chargé d´affaires a.i. 34 Likewise, the U.S. took no steps until the conference, apart from the above-mentioned declaration from 2 September 1918. France, which became the main guarantor of the Czechoslovak independence in the autumn of 1918, also awaited the results of the Peace conference. In this respect, Professor Stefan Talmon noted that this issue was discussed in this sense in the French National Assembly on 19 June 1919 when the Ministry of Foreign Affairs retroactively expressed its views on the French attitude to the recognition. 35 France, Great Britain, and the U.S. became the main addressees for the Czechoslovak demands to be discussed at the Peace conference. After Masaryk returned from the U.S. to Europe at the end of November 1918 (having been elected the President of the Czechoslovak Republic), he immediately met with the British politicians in London and transmitted the Czechoslovak proposals and demands for the planned Peace conference to them, including the demand to adhere to the historical borders, i.e., a rejection of the looming separatism in the German border regions of the newly created Czechoslovakia. 36 The representatives of German politics in the Czech lands responded to the creation of independent Czechoslovakia in October 1918 by attempting to put into practice their earlier wishes to separate large border regions from the Czech lands and annex them to so-called German Austria. The support that the new Austrian representation gave to this idea was the strongest international political argument and also the greatest danger for the newly created Czechoslovak state. On 29 October 1918 an assembly was established in Liberec with a national committee for the newly created German province called Deutschböhmen . The following day, the province Sudetenland was proclaimed in Opava. At the beginning of November, the provinces Deutsche Südmähren and Bohmerwaldgau were created, in German southern Moravia with the centre in Znojmo, and in south-western Bohemia respectively. The provinces envisaged the annexation of the so-called linguistic pockets in Jihlava, Olomouc, and Brno. The German politicians in the Czech lands (and the Austrian diplomacy) justified this step by stressing the right to self-determination (i.e., separation from the Czech lands and unification with Austria), and they tried to gain the support of the Allied Powers, including the U.S. and President Wilson. 33 Ibid, doc. No. 169. 34 It was mentioned by sir Ronald Graham from Foreign Office in his letter to Treasury on the appointment of chargé d’affaires C.W. Gosling to Prague, 14 December 1918, The National Archives, London, Treasury T 1/2432. 35 TALMON, S: Recognition of Governments in International Law, p. 78. 36 DEJMEK, J.: Nenaplněné naděje: politické a diplomatické vztahy Československa a Velké Británie od zrodu První republiky po konferenci v Mnichově (1918–1938) [ Unfulfilled Hopes: Political and Diplomatic Relations between Czechoslovakia and Great Britain after the Creation of the First Republic until the Munich Conference (1918–1938) ], Praha: Karolinum 2003, pp. 15-16.

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